The Court’s 1997 ruling on the majority required to call a state constitutional convention was a travesty of justice that should be overturned before the Nov. 6, 2018 election.

by J.H. Snider, Ph.D.

Hawaii’s Constitution mandates that once a decade--next on Nov. 6--the People of Hawaii be granted the right to call a state constitutional convention to propose democratic reforms for popular ratification.

Hawaii’s Framers included this decennial mandate to secure the People’s most fundamental and precious political right: their right to reform their government —even in the face of the Legislature’s opposition.

The 1996 Vote

But what type of majority should be used to determine whether The People have called a convention? In 1996, a majority of those voting on the referendum, an “ordinary” majority, approved calling a convention. Hawaii’s Office of Elections affirmed that the referendum was approved based on an opinion issued by Hawaii’s Attorney General, Hawaii statute, past practice since statehood, and the Hawaii Office of Elections’ own ballot guidance prior to the 1996 election.

But state legislative leaders and unions, which had strongly opposed calling a convention, disagreed. Acting on their behalf, the AFL-CIO sued, arguing that non-votes should be counted as no votes--an “extraordinary” majority—so the referendum would be defeated.

The case was sent directly to Hawaii’s Supreme Court, which ruled in favor of the AFL-CIO. The Court didn’t dispute that its interpretation was being applied both retroactively and contrary to the public’s understanding of how ballots would be counted. Instead, it argued that other considerations were paramount, notably the plain meaning of the constitutional language.

A federal court subsequently overturned part of the Hawaii court’s opinion, ruling that the election would have to be redone. But a federal appeals court overruled the lower federal court’s ruling, thus allowing the Hawaii court’s ruling to hold.

The Hawaii Legislature then passed a bill to redo the election, thus heading off the risk that the U.S. Supreme Court would rule on appeal that the constitutional convention referendum had passed. At the subsequent election, with the opposition vastly outspending supporters, the referendum was unambiguously defeated.

The Law

What is the law? Both the plaintiffs and defendants argued that the text of Hawaii’s Constitution unambiguously favored their own interpretation. But the defendants sought to prove too much. All they needed to prove is that the language is ambiguous.

As it turns out, ambiguously phrased majority denominator referendum requirements, like Hawaii’s, have been a dime a dozen in American constitutional, statutory, and regulatory legal history. Indeed, prior to the Civil War, they were the norm rather than the exception. Even today, they continue to be widespread, including in state constitutions. In popular and political speech, they remain as ubiquitous today as in the 18th and 19th centuries.

Fueling this propensity for ambiguity is not only garden-variety intellectual sloppiness about government processes, but political self-interest. On the one hand, candidates and issue advocates seek to portray themselves publicly as representing all the people (e.g., a “majority of the people”) and thus above dirty politics. On the other hand, winning requires focusing on a small majority denominator (e.g., a “majority of the people voting”). Vague majority statements finesse this PR dilemma.

Legislatures and courts haven’t generally had any qualms about interpreting such ambiguity as unambiguously referring to an ordinary majority. That is, barring compelling evidence to the contrary, the legal tradition has been to interpret ambiguously worded majority denominators as ordinary majorities.

The Politics

Bolstering this interpretative tendency has been legislature self-interest: legislatures want their own proposals to pass. State courts, in turn, have generally been deferential to a legislature’s self-interested interpretations.

Even in the relatively rare cases when the majority language opposing a legislature’s self-interest has been unambiguous, courts have generally acceded to the legislature’s gimmicks to make an extraordinary majority function as an ordinary majority. These gimmicks include making a referendum a special election, placing it on a separate, high-profile ballot at a general election, and making the default ballot choice for a non-vote equivalent to a yes rather than no vote.

From this perspective, what is most noteworthy about Hawaii’s majority to call a constitutional convention is not its ambiguity but the Legislature’s willingness to place its fingers on the electoral scale, even if only seemingly by omission, born out of its strong dislike for calling a convention.

The specific language used in Hawaii’s Constitution is: “majority of the ballots cast upon such question.” Hawaii’s Supreme Court argued that the plain meaning of this text was “clear and unambiguous.” But its convoluted reasoning to arrive at this conclusion in the face of competing authorities and Hawaii precedent demonstrated the tenuousness of its claim. As an essay published by Elijah Yip in a Hawaii State Bar Association newsletter would later argue, the Supreme Court’s opinion “was both logically flawed and intellectually disingenuous.” Constitutional scholars living contemporaneously with the passage of this language had also interpreted it as an ordinary majority.

The Word “Ballot”

A central point of contention was the word “ballot.” When ballot is used as a synonym for the word “vote,” as defined by Merriam-Webster’s Thesaurus, ballot can only refer to an ordinary majority in the disputed sentence. In this use, the word ballot is to vote like crown is to monarch: a concrete manifestation—a metonym—for a more abstract entity.

Historically, the word ballot is derived from ball, as in placing a ball in a basket to vote for or against a proposition. When 90% or more of the populace was illiterate, printed ballots weren’t an option. As late as the early 20th Century, most Americans voted with pre-filled ballots, called party tickets, which required minimal voter literacy and didn’t include blank votes. Not until the advent of the government ballot, which required voters to fill blank ballots, does the Hawaii Supreme Court’s presumption of a ballot consisting of non-votes make sense.

Even after the widespread adoption of the government ballot in the first half of the 20th Century, voters were often asked to fill out two or more ballots at the same election. This included different ballots for local, state, and national elections, which could dramatically simplify the printing, distribution, and counting of ballots. It also included separate ballots for partisan and non-partisan propositions. In Hawaii, as in other states, the constitutional convention question was placed on a separate, non-partisan ballot. For example, see Missouri, the last state before Hawaii to include a periodic state constitutional convention referendum in its constitution.

Even in the current era of the government ballot, 99% of “ballots” used by state and local legislatures, town meetings, and civic association, still include only one question, with the words ballots and votes being used interchangeably.

The Critical First Amendment Issue

From a free speech or U.S. First Amendment perspective, the greatest outrage of the Hawaii Supreme Court’s decision—as statutorily implemented in 2000 by the State Legislature—is its implicit claim that both the Framers and Ratifiers of Hawaii’s 1959 statehood Constitution intended a larger majority to call a constitutional convention than to ratify a convention’s proposals. (This relationship has been obfuscated by a subsequent increase in the quorum required to pass constitutional amendments.)

As Russell Suziki, Hawaii’s current Attorney General and then Deputy Attorney General, wrote to the Office of Elections: “the calculation of a majority for the convening of a constitutional convention was intended by our framers to be different from and less stringent than the calculation of a majority for the ratification of amendments proposed by a convention.”

This type of relationship between an agenda-setting and lawmaking majority was in keeping with traditional American democratic norms. For example, read any authoritative manual of democratic procedure, such as Robert’s Rules of Order, and you will never see the type of inverse relationship endorsed by Hawaii’s Supreme Court. None of America’s 236 state constitutional conventions since 1776 explicitly endorsed such a relationship. America’s Federal Constitution amendment process lacks such a relationship. And in the 19 U.S. states with the popular constitutional initiative, which is the primary alternative legislative bypass mechanism in America, none require more than a 15% majority (e.g., 15% of those who voted at the last election) to place a constitutional amendment on the ballot.

Conclusion

In its shoddy legal reasoning driven by political considerations, the Hawaii Supreme Court’s constitutional convention decision was analogous to the U.S. Supreme Court’s infamous Bush v. Gore decision that settled the 2000 U.S. presidential election. In this case, however, the Court’s unacknowledged bias wasn’t partisan. It was careerist, as the judges had an acute conflict of interest because they are reappointed by a judicial nominating commission that is controlled by state legislative leaders who have been as viscerally opposed to calling state constitutional conventions as to passing state legislative term limits. To paraphrase Upton Sinclair, “It is difficult to get a judge to understand something, when his salary depends on his not understanding it.”

Given the Hawaii Supreme Court’s conflict of interest, a legal remedy will most likely have to come from a federal court. One federal court strategy would be to focus on the First Amendment abomination of making the majority required to call a convention larger than the original majority required to ratify its proposals. Ideally, declaratory relief should be sought on this question prior to the election so that ballot non-votes on one-size-fits-all-ballots won’t be counted as no votes. But this is only one of a series of legal issues ultimately raised by the Hawaii Legislature’s implacable opposition to calling a state constitutional convention.

One reason for seeking legal relief before rather than after the referendum is that the Hawaii Supreme Court’s ruling unfairly discourages convention advocates, thoughtful press coverage, and public deliberation more broadly. After all, why invest resources in an activity when the result appears hopeless or predetermined? As Sun Tzu, the great military strategist, observed: “The supreme art of war is to subdue the enemy without fighting”--what we would today call “deterrence.” An analogy would be autocratic countries with elections (“pseudo democracies”) that adopt policies to discourage potential competitors and thus make the resulting elections irrelevant. But here the “autocrat” has been the Legislature acting below the public radar by discreetly laundering its influence via Hawaii’s Supreme Court, Office of Elections, and Legislative Reference Bureau.

Legal scholars and political scientists have often observed that constitutions are mere parchment barriers unless the people are able and willing to fight for their rights. These rights include the people’s right to reform their government in the face of a legislature’s opposition.

Hawaii voters were unjustly deprived of a constitutional convention they fairly voted for in 1996. Daunting as the task may be, we must never allow this gross injustice to happen again.